DPP v Blackman [2025] VCC 1402

1. Your personal circumstances are outlined in defence submissions and the psychological assessment report of Christine Kennedy dated 13 June 2025. Ms Kennedy consulted with you in person at the Metropolitan Remand Centre for approximately 100 minutes on 26 May 2025. She took a history from you but also noted that she had no way of confirming whether what you were telling her was truthful or accurate. As you declined to participate in any psychometric testing, her clinical assessment was based on her interview and supporting documentation.
2. You are a 26-year-old Torres Strait Islander man. You told Ms Kennedy that your grandmother was part of the stolen generation, and she and her sisters were relocated from the Torres Strait Islands to the Mildura region when they were children.
3. You claim not to remember many details from your childhood. You have no memory of your father but understand that he was a member of an outlaw motorcycle gang and died when you were two years old. You told Ms Kennedy that your mother was dependent on cannabis, pills and alcohol throughout your childhood and that your nan was a 'full blown alcoholic'. You have two half-sisters that you say you 'basically raised', and all three of you spent time in foster care. Your family moved around a lot and often lived in caravan parks and you remember your uncles being 'in and out of gaol'.
4. You told Mr Anger that you were sexually abused twice as a young child by two different people.
5. You told Ms Kennedy that you attended school to Year 10 and since then have intermittently worked as a bartender.
6. You have had two significant intimate relationships, the first of which resulted in a daughter when you were only 16 years old. That daughter is now aged 10 or 11 and you do not know anything about her except you believe she is in foster care. You have another two children from your most recent relationship, aged four and five. They are cared for by an auntie under a kinship arrangement, and you have no contact with them.
7. You told Ms Kennedy that you started drinking alcohol when you were 13 years old but are now mostly abstinent, although she noted that your medical records indicate otherwise. You said you started using cannabis at age 15 or 16 and were smoking it daily until the age of 25 when you started using methamphetamine. You told Ms Kennedy that you function well when drug affected and did not believe drug or alcohol rehabilitation would be beneficial to you. You have done it in the past and you said it drove you 'up the wall', and further, you used prison as a means of rehabilitation.
8. You told Ms Kennedy that you lit the fires because you were homeless and wanted to go to prison. You also told her that: 'This is my fifth time (in prison). I'm addicted to gaol. (It has a) bed, TV, shower (and that) makes me happy'.
9. Ms Kennedy considered that you showed evidence of institutionalisation as to which she said:

'While there are no diagnostic criteria for institutionalisation, it is nonetheless a generally accepted phenomenon where individuals, after living for prolonged periods in institutional settings, develop dependence on those institutions for physical and emotional support and have difficulty functioning successfully in the wider community'.

1. I am not sure what the five periods of incarceration to which you referred are, as they are not reflected in your criminal history, which only has you spending about one month in prison in August 2023 prior to your remand on this matter.
2. Ms Kennedy also considered that you are likely to be suffering the effects of transgenerational trauma. In that regard she said:

'Children of survivors of the stolen generations have been found to be at twice the risk of significant emotional and behavioural difficulties compared with children in families who were not separated.'

1. Ms Kennedy estimated your IQ to fall in the borderline range. She considered that you satisfy the DSM-5-TR diagnostic criteria for stimulant use disorder (in early remission) and severe antisocial personality.
2. She said that you suffered psychological and emotional neglect and abuse as a child, you presented as socially isolated and immature for your age with a dull intellect and poor coping skills. She said you presented with little insight into your psychological functioning and struggle to take responsibility for your behaviour. She also said that the antisocial features of your personality mean that you lack empathy and are largely mistrustful and suspicious of others. Further, you are prone to impulsive or poor-quality decision-making that lacks appropriate planning, and you are likely to engage in irresponsible behaviours.

Objective Gravity of your offending and moral culpability

1. Critical to any sentence are the objective gravity of the offending and the moral culpability of the offender.
2. If there was any doubt about the inherent seriousness of your offence, the maximum penalty of 15 years makes it clear.
3. Moreover, your particular offending was aggravated by the fact that you lit three separate fires, that you did so in a declared fire danger period and on an extremely hot day giving rise to the potential for catastrophic harm.
4. That said, your crimes were unsophisticated and easily detected by passing motorists. Further, although you were carrying a lighter, there is no evidence of any great premeditation, there was limited nearby vegetation, no nearby houses or livestock, and finally, the damage you actually caused was very limited.
5. As serious as your conduct was, I consider it to be at the lower end of the spectrum of seriousness for the offence.
6. As for your moral culpability, you have given two different reasons for doing such an extraordinary thing. To the police you essentially explained it as a cultural imperative. You said you had walked to the area from Mildura that day and you chose that area to burn because of all the rubbish that was there. You admitted that it was dangerous, and you knew you could have killed yourself or someone else, but that was not your intention. Rather, you did it to heal the earth, to bring back new growth to the earth because the earth needs it.
7. You said this in your record of interview:

'And that's what the ancestors were doing many, many years ago, just to clean off all the prickles, all the other stuff, all this weeds so then the dirt would be soft so then we could dance and sing in it and camp in it. Doesn't this look more cleaner than all of this?'

1. You also admitted to the police that you knew that in modern days what you did was wrong.
2. To Ms Kennedy you said you did it so you could go to prison, as I have already mentioned, and have a roof over your head. You denied being substance affected.
3. It is somewhat difficult to reconcile those accounts but whatever your motivation you clearly recognised that what you were doing was dangerous and wrong and went ahead anyway.
4. That said, your history of childhood deprivation, your personality structure, your relatively low IQ and the effects of intergenerational trauma on you, are all matters beyond your control, and which reduce your moral culpability to a degree. Clearly you are not to be judged the same as a person without those disadvantages.

1. I have had regard to current sentencing practices by looking at the most recent Sentencing Advisory Council Statistics of the higher courts, and that is the five years up until 30 June 2023, and sentences imposed in other cases. I was referred to a number of such sentences by Mr Anger and discovered a few more of my own.[2] All the cases were County Court cases except one where the sentence of three years with a non-parole period of two years for a rolled-up charge of intentionally cause a bushfire, was affirmed on appeal.
2. The statistics reveal that in 90 per cent of cases the offence was punished by a term of imprisonment with the most common sentence being between one to two years. The commentary indicates that in many cases a combination sentence of imprisonment and a community corrections order was imposed, and certainly in the County Court cases which I have read, that was a common outcome.
3. There is no need to recite the details of all the cases I have considered, it is enough to note that whilst a useful guide, no two cases are ever truly the same and sentences imposed in other cases are not binding. There is never one single correct sentence for any offending. Ultimately, my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

1. You are entitled to a discount in your sentence for making full admissions from the outset and pleading guilty at a very early stage. In so doing you facilitated the course of justice and took legal responsibility for your crimes.
2. There is no evidence that you are remorseful, however, so you miss out on the enhanced discount that would have applied if you were.

1. Your criminal record, both prior and subsequent matters, gives real cause for concern. Your first offences were in 2017 in the Children's Court, and you have been in the Magistrates Court on many occasions since then generally for assaults or family violence related matters. Whilst you have only received two short terms of imprisonment prior to this matter, what your criminal history shows is that you have a complete disregard for court orders. You breached the first disposition ever given to you which was a bond, have contravened bail conditions, breached numerous corrections orders and consistently breached family violence intervention orders. Nothing seems to deter you.
2. One month before you lit the fires in this case you lit another fire during a fire danger period in Echuca. That was a small uncontained fire in the campground at which you were staying in Echuca, and you threw some clothing and a phone into it. When the police attended you complied with their direction to put it out and told them that you did it because it was sorry business and you had to extinguish a bad entity hanging around your tent. You were charged with light fire in open air without authority and pleaded guilty to that charge and others whilst on remand for this matter
3. Ms Kennedy opined that your 'safe management in the community presents with a number of challenges related to your dull intellect, substance abuse, antisocial personality disorder and transgenerational trauma. Even with treatment and management he is highly likely to be subject to recurrences for many years to come. '
4. Thus, those very factors that reduce your moral culpability also give rise to the need for community protection.
5. Before I leave this topic, I think it is important to acknowledge that at your plea hearing and again today you have made the effort to dress up in a suit. Many, indeed, most offenders, do not do that. It is only a little thing, but I take it as a sign of respect for the court and the court process. You have also acted appropriately throughout.

1. In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you, particularly given your psychological profile and history of disadvantage. Mr Anger submitted that Verdins Limb 5 was enlivened, but I am not convinced that it is. There is nothing in the material to indicate that prison is particularly burdensome for you, to the contrary, as I have said, Ms Kennedy thought you may be institutionalised. That said, clearly you should not be encouraged to commit offences in order to go back to prison and the fact that you feel that way may be counterproductive.

1. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
2. Mr Anger conceded that a term of imprisonment was warranted and submitted that I impose a straight sentence. He acknowledged your poor history of compliance with Corrections orders and posited the risk that you would not apply for parole if a non-parole period was imposed. Mr O'Doherty submitted that a head sentence and non-parole period was called for in all the circumstances.
3. The principles of general deterrence and denunciation are important for your offences. People who, for whatever reason, may be inclined to light bush fires need to know they will be punished. The principle of specific deterrence is also of importance because of your history of offending. I will, however, moderate those principles on account of the factors that have reduced your moral culpability.
4. Community protection is particularly important in your case and for that reason I do not propose to impose a straight sentence. It is highly desirable that there be some supervision upon your release, and given your non-compliance with Corrections orders, it is obvious that the only way that might occur is by you being released on parole. It is your choice whether you do apply for parole, but I encourage you to do so and to take advantage of the assistance that parole will give you.

1. Mr Blackman, on the single charge of light a bushfire, I convict and sentence you to a term of imprisonment of 16 months and in respect of that sentence I set a non-parole period of 10 months.
2. I declare that you have already served 185 days' imprisonment, not including today, in respect of that sentence and order this declaration be entered in the records of the court and the period deducted administratively.

Section 6AAA

1. If you had not pleaded guilty to this charge and been found guilty by a jury, I would have sentenced you to two years' imprisonment with a non-parole period of one-and-a-half years.

1. The prosecution has applied for forfeiture of the lighter, and I will make that order.
2. So, Mr Blackman, do you understand the sentence, it's a term of imprisonment of 16 months which is one year and four months, and a non-parole period of ten months.
3. ACCUSED: Yes, Your Honour.
4. HER HONOUR: All right, thank you. Is there anything else.
5. MR O'DOHERTY: No, Your Honour.
6. HER HONOUR: Thank you, I'll leave the bench.

[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.

[2] Stanger v The Queen [2021] VSCA 25; DPP v Binotto [2024] VCC 1853; DPP v Smith [2022] VCC 53; DPP v Lester [2016] VCC 1445; DPP v McGrath [2019] VCC 209; DPP v Poole [2018] VCC 107; DPP v Thumpston [2018] VCC 434; DPP v Morgan [2016] VCC 939.